Citation NR: 9609989
Decision Date: 04/12/96 Archive Date: 04/24/96
DOCKET NO. 94-30 139 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Entitlement to an increased (compensable) disability
rating for chondromalacia patella of the right knee.
2. Entitlement to an increased (compensable) disability
rating for chondromalacia patella of the left knee.
3. Entitlement to service connection for a low back
disorder.
ATTORNEY FOR THE BOARD
T. Reichelderfer, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1985 to February
1989.
This appeal arises from a rating decision of July 1993 from
the St. Petersburg, Florida, Regional Office (RO).
The issue of entitlement to a 10 percent disability rating
due to multiple noncompensable service connected disabilities
under 38 C.F.R. § 3.324 (1995) was certified to the Board of
Veterans’ Appeals (Board) by the RO. However, the veteran’s
notice of disagreement was specific as to the issues that she
disagreed with and it did not include the issue of a 10
percent disability rating due to multiple noncompensable
service connected disabilities. Additionally, the veteran’s
substantive appeal did not address the issue of a 10 percent
disability rating due to multiple noncompensable
disabilities. Therefore, an appeal of this issue has not
been perfected and it is not properly before the Board for
consideration. 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R.
§§ 20.200, 20.201, 20.202 (1995).
The veteran has indicated that the diagnosis under which her
service connected knee disability has been described is not
correct. It is noted that private medical records indicate
that she has chondromalacia of the medial femoral condyle of
the right knee. This matter is referred to the RO for review
and any appropriate action.
CONTENTIONS OF APPELLANT ON APPEAL
The veteran has stated that she is not seeking increased
ratings for the disability of her right and left knees. She
does contend that she developed a low back disorder during
service and that the back disorder continues.
DECISION OF THE BOARD
The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991 & Supp. 1995), has reviewed and considered
all of the evidence and material of record in the veteran's
claims file. Based on its review of the relevant evidence in
this matter, and for the following reasons and bases, it is
the decision of the Board that the appeal for an increased
disability rating for chondromalacia patella of the right
knee and of the left knee is dismissed. It is also the
decision of the Board that the preponderance of the evidence
is against the claim for service connection for a low back
disorder.
FINDINGS OF FACT
1. On September 29, 1994, prior to the promulgation of a
decision in the appeal, the RO received notification from the
appellant that constitutes a withdrawal of the appeal for
increased disability ratings.
2. All evidence necessary for an equitable disposition of
the veteran’s claim for service connection for a low back
disorder has been developed.
3. A chronic low back disorder was not shown during service,
there is no continuity of a low back disorder following
service, any current low back disorder is not related to
service.
4. Arthritis of the lumbar spine was not present within one
year of discharge from service.
CONCLUSIONS OF LAW
1. The criteria for withdrawal of a Substantive Appeal by
the appellant have been met. 38 U.S.C.A. § 7105(b)(2),
(d)(5) (West 1991); 38 C.F.R. §§ 20.202, 20.204(b), (c)
(1995).
2. A low back disorder was not incurred in service or as the
result of service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131,
1137, 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309
(1995).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Right and left knee disability.
Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal
which fails to allege specific error of fact or law in the
determination being appealed. A Substantive Appeal may be
withdrawn in writing at any time before the Board promulgates
a decision. 38 C.F.R. §§ 20.202, 20.204(b). Withdrawal may
be made by the appellant or by his or her authorized
representative, except that a representative may not withdraw
a Substantive Appeal filed by the appellant personally
without the express written consent of the appellant. 38
C.F.R. § 20.204(c).
The veteran perfected an appeal for entitlement to an
increased disability rating for a right and left knee
disability. In a statement received from the appellant on
September 29, 1994, she stated that she was not requesting an
increased disability rating for her right and left knee
disability. Therefore, the Board finds that this statement
constitutes a withdrawal of her appeal for increased
disability ratings. Hence, there remain no allegations of
errors of fact or law on the issue of increased disability
ratings for appellate consideration. Accordingly, the Board
does not have jurisdiction to review the appeal and it is
dismissed without prejudice.
Low back disorder.
Background
Initially, the Board finds that the veteran's claim is "well
grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West
1991); that is, a plausible claim has been presented. The
veteran has not indicated that additional relevant evidence
of probative value may be obtained which has not already been
sought and associated with the claims folder. Accordingly,
the Board finds that the duty to assist the veteran, as
mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been
satisfied.
The veteran contends, in essence, that she developed a low
back disorder during service and that her back disability
continues. After a review of the record, her contentions are
not found to be supported by the evidence and her claim
fails.
Service connection may be granted for disability resulting
from disease or injury incurred in or aggravated in the line
of duty in service. 38 U.S.C.A. § 1131 (West 1991);
38 C.F.R. § 3.303(a) (1995). The disease or injury must be
shown to be chronic during service. There must be sufficient
manifestations to identify the disease entity. In the
absence of chronicity, continuity of symptomatology following
discharge is required. 38 C.F.R. § 3.303(b) (1995). When a
disease is initially diagnosed following service, service
connection may be granted when all of the evidence
establishes that the disease was incurred during service.
38 C.F.R. § 3.303(d) (1995).
Where a veteran served continuously for ninety (90) days or
more and arthritis becomes manifest to a degree of 10 percent
or more within one year from date of termination of such
service, such disease shall be presumed to have been incurred
in service, even though there is no evidence of such disease
during the period of service. 38 U.S.C.A. §§ 1101, 1112,
1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995).
A clinical record, dated in July 1987, noted an assessment of
sacroiliitis.
A physical profile serial report (AF Form 422), dated July
10, 1987, indicated that the veteran could not run, do sit
ups, or push ups until July 24, 1987, due to sacroiliitis.
A report of medical examination, dated in January 1989, noted
that the clinical evaluation of the spine was normal. A
report of medical history, also dated in January 1989, noted
that the veteran indicated that she did not have any
recurrent back pain.
A private clinical record, dated October 2, 1990, noted an
impression of low back pain. The record noted that the
veteran indicated her left sacro-iliac/buttock area was
bothering her more.
A private clinical record, dated October 30, 1990, noted the
back was somewhat better. The impression was low back pain.
A private clinical record, dated in May 1992, noted that the
veteran bent over and had a sharp pain in her back.
The report of a private medical evaluation, dated in June
1992, noted that the veteran indicated that she had
occasional low back pain. There was no deformity of the
lumbosacral spine and no sciatic notch tenderness. There was
slight tenderness noted in the left sacro-iliac area. The
report indicated that X-rays showed trivial degenerative
changes.
A private clinical record, dated in September 1992, noted
that there were trigger points over the right and left sacro-
iliac joint, and lateral to the left lateral sacral border.
The left sacro-iliac joint was restricted. The right sacro-
iliac joint was hypermobile and anterior.
A private clinical record, dated in October 1992, indicated
that there was minimal scoliosis of the lumbar spine. There
was excellent flexibility but decreased strength. The report
noted that there was bilateral supination which seemed to
affect her back posture. X-rays did not show significant
disease. The assessment was minimal lumbar scoliosis and
complaint of recurrent back pain.
A private clinical record, dated in January 1993, noted an
assessment of recurrent back strain.
The report of a Department of Veterans Affairs (VA)
examination, dated in May 1993, noted that the veteran
indicated that she had an onset of low back pain in 1987 and
has had an episode of back pain every two or three months.
The examiner indicated that “I can find no evidence of back
pathology.” A report of X-rays, also dated in May 1993,
noted an impression of normal lumbar spine.
Analysis
The veteran did not have a chronic back disorder during
service. On one occasion, the veteran was assessed with
sacroiliitis and placed on profile for approximately two
weeks. There is no evidence of record to indicate that the
profile was extended nor is there any evidence that the
veteran had further problems with her low back during
service. Additionally, in January 1989, the veteran did not
indicate that she had recurrent back pain and her spine was
assessed as being clinically normal. Therefore, a chronic
back disorder was not shown during service. 38 C.F.R.
§ 3.303(a)&(b) (1995).
There is also no continuity of a back disorder following
service. The veteran had a single incident of sacroiliitis
in 1987 during service which was acute. In 1989, immediately
prior to her discharge, the evidence shows that her back was
normal and she had no complaints of recurrent back pain. The
first complaint regarding her back shown in the post service
medical evidence was in October 1990, when she was noted only
to have low back pain. This was over a year and a half
following her discharge from active duty and over three years
following the incident of sacroiliitis during service.
In 1992, the veteran received a variety of assessments
concerning her low back including trivial degenerative
changes of the lumbar spine and minimal lumbar scoliosis.
However, these assessments were after May 1992 when she had
the onset of back pain after bending over. By the May 1993
VA examination, there was no back pathology present.
The incidents of back pain in 1990 and 1992 following service
are considered to have been isolated incidents and not
continuity of symptomatology of a diagnosed low back
disorder. The veteran was assessed with sacroiliitis during
service which was acute. Following service, she received
various assessments for the complaints of pain in her back.
Significantly, however, no specific back disorder was
identified on the VA examination. Therefore, the evidence of
record does not establish continuity of symptomatology of a
diagnosed low back disorder since the isolated incidents of
back pain following service are not considered to be related
to the single incident of sacroiliitis in service. 38 C.F.R.
§ 3.303(b)&(d) (1995).
Since a chronic low back disorder was not shown during
service, there is no continuity of a low back disorder
following service, and any low back disorder that may
currently be present is not related to service, direct
service connection for a low back disorder is not warranted.
38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1995).
It is noted that in June 1992, the veteran was assessed with
degenerative changes of the lumbar spine. This was the first
indication in the medical evidence of any arthritis of the
low back. However, this was more than one year following the
veteran’s discharge from active duty. Therefore, arthritis
of the lumbar spine may not be presumed to have been incurred
in service and service connection on a presumptive basis
cannot be established. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137
(West 1991); 38 C.F.R. §§ 3.307, 3.309 (1995).
For the reasons set forth above, the Board must find that the
preponderance of the evidence is against the veteran’s claim
for service connection for a low back disorder. 38 U.S.C.A.
§§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R.
§§ 3.303, 3.307, 3.309 (1995).
ORDER
1. The appeal for an increased disability rating for
chondromalacia patella of the right knee and of the left knee
is dismissed.
2. Service connection for a low back disorder is denied.
JACK W. BLASINGAME
Member, Board of Veterans' Appeals
The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741
(1994), permits a proceeding instituted before the Board to
be assigned to an individual member of the Board for a
determination. This proceeding has been assigned to an
individual member of the Board.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West
1991 & Supp. 1995), a decision of the Board of Veterans'
Appeals granting less than the complete benefit, or benefits,
sought on appeal is appealable to the United States Court of
Veterans Appeals within 120 days from the date of mailing of
notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board
was filed with the agency of original jurisdiction on or
after November 18, 1988. Veterans' Judicial Review Act,
Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The
date which appears on the face of this decision constitutes
the date of mailing and the copy of this decision which you
have received is your notice of the action taken on your
appeal by the Board of Veterans' Appeals.
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